"But it's Not Required!" Regardless, Why Law Students Should Excel at Legal Research

“But it’s Not Required!” Regardless, Why Law Students Should Excel at Legal Research

By Jennifer (Marshall) Pesetsky

Here are the conundrums.

Law students generally want three things: (1) to do well in their courses; (2) to pass the bar exam looming ahead of them; and (3) to find a job. Achieving these three goals is admirable. With limited exceptions, students are not required to learn how to research effectively to excel at this list of goals.

However, not learning to research will negatively impact their future success as lawyers.

For law librarians who teach legal research, the conundrum pits the big vendors’ marketing budget, which is quite large, squarely against the budgets of the smaller vendors and the print collection which, by any measure, are much less impressive. With effort, law librarians can attempt to equalize this balance and provide our students with a number of research options and the skill to evaluate which might be best in various circumstances.

Our challenge, as teachers of law students, is to encourage them while they are in law school to adopt a fourth goal: (4) prepare to be an effective lawyer. To be an effective lawyer, one must become a proficient researcher by understanding both the cost and functionality of many different research tools.

Research Tools Cost Money

Law students are blissfully unaware of the cost to acquire and maintain the print and electronic resources to which they have access. Law library directors and other members of the law library staff select materials for their libraries (and their intranets) and negotiate prices with the publishers. Law students use these tools with little or no understanding of what goes on behind the scenes to obtain and maintain these materials.

The big vendors benefit from law students’ ignorance in the hopes that students will come to love their products. In the future, when those students become lawyers, they may feel incomplete without these resources and feel compelled to purchase and use them for their own practices despite financial considerations.

To avoid a drug analogy, let’s think about young children and Disney. Much has been written about Disney trying to infiltrate our children’s lunchboxes and wardrobes at an alarmingly early age. Disney’s wisdom seems to be that one is never too young to idolize make-believe princesses. Analogously, for the publishers of legal materials, the perfect time to get legal scholars to rely on their products is before they are required to weigh the cost of the research tool against the benefit that product provides. Legal publishers’ (and Disney’s) hope is that preferences formed early will persist and positively impact their revenue streams.

In addition to enabling cost obfuscation, the big vendors insinuate themselves into the research habits of our students in many other ways. They provide food and gifts to students who sit through training sessions. They provide members of the law library staff with branded Post-It notes and research questions to use in our advanced legal research assignments. These perks are not necessarily bad; I definitely appreciate a good pack of Post-It notes! The problem arises when law librarians don’t act to counter this marketing by highlighting other research tools in order to provide a balanced education for students.
Students’ naiveté regarding the cost of research tools abruptly ends once law school becomes law practice.

Those who begin practice as solos will need to decide what research tools they want to purchase. Will it be the bountiful buffet of Lexis and/or Westlaw, which come with a high price tag? Will it be a few print practice guides that are essential to their specialty area supplemented with the collection from a local library? Or will it be a choice from the myriad of options in between?

Those who start work at an existing firm are not immune to thinking about the costs of research. The young lawyer (or lawyer-to-be) in a firm may not have immediate decision-making power about what resources to acquire. But, to be successful, he or she will have to learn how the firm’s contracts with the vendors work. How does the firm get billed by the vendor? How does the firm bill its clients? What shows up on the clients’ invoices?

The cost of research tools is often quite justified given the amount of material they make accessible. One of my mentor librarians recalls a time as a practicing attorney, before the prevalence of online databases, when doing a nationwide bankruptcy filing search was practically impossible. Today, because of the big online vendors, such a search is not only possible, but quick, all while seated comfortably in your office or law library. This practical ease often justifies research tools’ high cost.

The issue isn’t the cost of the tool; the issue is being unaware of the cost.

Versatility Triumphs

Students often tell me about their strong preference regarding which research tools they use—for instance, whether they prefer Westlaw over Lexis (or vice-versa). Some students tell me they never use HeinOnline or our other subscription databases. They generally can’t be bothered with print.

These preferences are problematic for two main reasons—functionality and availability.

Regarding functionality, law schools and law firms choose to purchase a variety of research tools because those tools have different strengths and weaknesses. For example, HeinOnline has a bit of a clunky search engine, but it displays articles as exact PDFs of what appeared in the journals themselves. This means that charts, graphs, and any pictures that are included in the article as published are not lost.

To emphasize this point, in my office, I have tacked to my bulletin board an illustration that I’ve created to highlight the functionality of HeinOnline and how it may, in some situations, be preferable over the bigger databases. On the left side, I’ve copied portions of a California Law Review article from Westlaw. This article discusses Miranda warnings and waivers and how they go from Supreme Court ruling to police training materials, showing how Miranda actually works on a day-to-day basis. The Westlaw version of this article does not have any illustrations and notes many times: “TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE.” On the right side, I show the same portion of this article from HeinOnline. This version contains illustrations that show, among other things, the actual Miranda cards that police officers carry; these are crucial to the point of the article.

Law students don’t know what they will have access to once they are in practice, so not being versatile in research strategy can hinder them. Recently, I received a call from an alumna who used Westlaw all through her time in law school and has now joined a law firm that only uses Lexis. She will be able to make the transition from one research tool to another, but she would have been much more at ease if she made it a practice to use both of the big online vendors during law school. Since current law students can’t predict what will be available to them once they graduate and they can’t know what innovations will occur, they should make a point of using many tools during law school so they can be confident and competent with whatever they have available to them in the future.

Similarly, some current law students may find themselves in an environment where print research guides are available, practical, and economical for the work they are doing.

I often use a tool belt analogy. Construction workers wear tool belts with various hammers, wrenches, and screwdrivers on them. Different tools are good for different purposes. If the construction worker wants to put a nail in a piece of wood, a hammer is great. But it wouldn’t make sense to use that same hammer when a small, delicate screwdriver would work best. Similarly, Westlaw and Lexis are wonderful and powerful tools. But a smaller, more precise tool may be a better choice in certain situations.

The principles and standards laid out in the task force’s draft are laudable. My suggestion is that we market these proposals to our own members, law librarians who can modify their own emphasis in order to nurture law students’ research acumen.

Proposal

As a professor of advanced legal research and a law librarian, I want to develop proficient and versatile searchers. I’ve noted a few specific strategies for doing so below:

If students lean toward one big vendor over another (a preference for Westlaw over Lexis, for example), expose them to the other service(s), and point out differences in functionality that may make the other service(s) more advantageous in certain circumstances.

Bring the reality of law practice into view when possible. In the advanced legal research class that I co-teach, I craft assignments that require students to ask practitioners about what research tools they are using in practice and why they chose those tools. Another of my assignments asks students to build a hypothetical research collection for their law firm of the future without purchasing a subscription to Lexis and/or Westlaw.

Create advanced legal research assignments that require students to avoid Westlaw and Lexis in order to expose them to the smaller online databases, the free web, and print.

Create your own illustration of a law review article formatted by Westlaw or Lexis compared with HeinOnline, or contact me and I’ll send you my version.

Our Responsibility

Research tools cost money. They are a necessary cost of doing business, along with office rent and business cards. Law students should learn how to use many different tools effectively, and they should develop a process for deciding which tools to use in different situations. They should continually update their knowledge as their circumstances, resources, and the research tools available evolve. As teachers of law students, we should do our best to illustrate the cost and functionality of the myriad of research tools and make research practical by bringing it into the real world.

I hope you will join me.

Jennifer (Marshall) Pesetsky (jpesetsky@ggu.edu) is reference and electronic services librarian and an adjunct professor of law at Golden Gate University School of Law in San Francisco.